Bill C-11 (Historical)

Copyright Modernization Act

An Act to amend the Copyright Act

This enactment amends the Copyright Act to
(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

Copyright Modernization Act

[Réjean Genest, NDP, Shefford, QC]

Mr. Speaker, I am pleased to rise in the House to speak about this bill.

This is an opportunity for me to wear several hats: I am a member of the House of Commons and an author. My occupation as a gardener led to me write several books on the subject.

I would like to say that the work of an author requires perseverance, discipline, determination and confidence. It is mostly solitary work. There is so much work to do that a book like mine can take three or four years to be published.

Copyright is a way of expressing respect for the author. Once again, I do not see the rights of the author in this bill. There is talk of respect but I do not see dividends for authors. As a producer and an author, I created and produced over 500 episodes of a gardening show on community television. For several years, I found it very enjoyable but that ended when my work was copied by others in both the format and the approach. There was nothing I could do. As an author, I created a gardening website of over 1,500 pages, which I have been maintaining since 1998. When you publish something on the Internet in French, you are speaking to the entire Francophonie. There too, my work was copied countless times and, as an author, I had no recourse.

In the government's bill, I do not see any possibility of recourse for authors or any way for authors to obtain payment from the party that copied their material. Various people will get a slap on the wrist but, in the end, the author's work has been copied and he or she has not been reimbursed. I know something about it. On the Internet, people often wrote to me to tell me that my pages had been copied and posted in various locations but I really could not do much about it. I even saw a world horticultural encyclopedia containing complete passages from my work. I had to exert pressure to have my work removed. As an author, I also had no recourse. In the bill, I see ways that the government could help an author to have recourse.

Authors earn a small income, often below minimum wage, but I do not see anything in the government's bill that would help an author whose work has been copied. There is a project in Quebec, somewhere in Montreal or elsewhere, that has been making headlines for years. Everyone knows that it was copied but nothing has been done. If the government wanted to take responsibility, it would find a way to make a system available to authors and legal experts whereby authors could be reimbursed by the parties who copy their work.

I am an author and I have written books, 10 of which are ready to be published. I am waiting to have the means to publish them, because the dividends paid to authors for the publication of books are between 5% and 10%, and they are paid out a year and a half later. In addition, nothing can be confirmed.

Personally, I plan to self-publish my books. Once again, the government has all kinds of legislation that helps publishing companies, but nothing that helps authors to self-publish. When will this government start taking care of authors and thinking like an author? Singers and people who record music were forced to create their own labels. Why is it that this government refuses to help people who want to self-publish? I do not understand.

Is there anything more logical and simple? We want to help people, but we want to penalize pirates and other offenders. Penalizing pirates will not help authors; it is a question of finding ways for authors to get what is owing to them.

Bill C-11 is identical to Bill C-32 from the previous Parliament. Artists from Quebec came here to Parliament Hill. Let us not forget their demands. This bill does not give artists any dividends. Consumers purchase songs or various things on the Web and copy entire pages of creations from the Web, but nothing goes to the artists. No dividends at all. When will this government bring forward a serious bill for authors, instead of just focusing on building prisons?

Indeed, it seems the government has big plans to increase the number of prisons in this country. We would prefer a bill that ensures that anyone who steals from authors would have to pay them back and not get out of it by declaring bankruptcy and going to prison. The artists must be paid back. We must find a way to ensure that offenders' goods are seized for longer than just a few years. The seizure should last many, many years so that the person has no choice but to pay back the author.

I wish the Conservatives would really act in favour of authors' needs and not in favour of the needs of their cronies. This is about the authors.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I would like to ask the hon. member an open-ended question. How can we compensate artists for lost income?

[Réjean Genest, NDP, Shefford, QC]

Mr. Speaker, I was looking for my earpiece because we are far apart and I did not hear the question. Could the member please ask it again?

[The Speaker, Conservative, Andrew Scheer]

I do not think that the hon. member for Shefford heard the question. There may be a problem with the translation.

I will give the floor to the member for Kingston and the Islands. He can repeat his question so the member for Shefford can answer.

[Ted Hsu, Liberal, Kingston and the Islands, ON]

Thank you, Mr. Speaker. It may have been my fault.

I completely agree that we should support artists. Could the hon. member tell me how we could compensate artists for lost income?

[Réjean Genest, NDP, Shefford, QC]

It is not complicated, Mr. Speaker. There is a royalty for someone who produces a CD-ROM. Normally, an arrangement is made and he receives royalties every time the CD-ROM is copied. It is very, very simple. When someone publishes a book, the author always receives royalties. The royalties owed to the author are calculated and then paid out to him. The same thing happens with a song, for example. The standard royalty is determined on a case-by-case basis. And that is how the creator is compensated. It seems quite simple to me.

I would like to thank the member for his question.

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I want to thank the hon. member for his very interesting speech. In his view, does the difficulty authors have getting their work recognized represent a major challenge in stimulating the cultural industry in our country?

[Réjean Genest, NDP, Shefford, QC]

Mr. Speaker, the major problem right now is technology. These days, we can copy a movie with a mini-camera at a movie theatre without being noticed. With all this technology, we can copy at every turn. It is indeed challenging to find a solution to this problem. We will never completely resolve the problem because there will always be someone who finds a way to get around things.

Regardless of whether we are talking about the movie, music or book industry, the works of artists and authors are being copied. There are even sculptors whose works are being copied with moulds and so on. It is a problem. The government has to put the right people in the right places to find solutions for each problem, and not five years after the problem has surfaced. We have to constantly address this in each field. The government has to protect the rights of Canadians and the rights of creators who contribute in their own way to Canada's good reputation.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I will be sharing my time with the member for Manicouagan.

We are very pleased to see that this government wants to take action to modernize the Copyright Act. These changes are long overdue. We are open to making changes. However, we would be even more receptive if the result was a balance that would benefit all stakeholders. The problem is that, contrary to what the government is saying, there is no balance in Bill C-11, as was the case for its predecessor, Bill C-32.

This bill will have fairly significant repercussions for authors, artists and consumers. Once again, despite the fact that the government says that the bill is balanced, we see that various associations and very important organizations representing the stakeholders do not concur.

First, let us talk about authors. We believe that they stand to lose the most with Bill C-11. The majority of writers' associations were opposed to Bill C-32 and now are opposed to Bill C-11, and with good cause. I would like to talk about one organization in particular, DAMI©, which is based in Montreal. DAMI© stands for Droit d'auteur Multimédia Internet Copyright. It is the umbrella organization for 13 professional associations of artists, authors, performers and copyright collectives. DAMI© represents 50,000 cultural artisans who are members of these 13 associations. What did DAMI© have to say about Bill C-32, which, I repeat, is now Bill C-11, currently under review? It had serious misgivings about Bill C-32, especially because of the free use of works protected by about 40 exceptions, half of which are new exceptions being made with respect to the current act.

I would like to read an excerpt from the DAMI© submission on Bill C-32, which, I repeat, is very pertinent because this is the same bill now being studied as Bill C-11.

Thanks to this bill, teachers will be able to use protected works [we are obviously talking about education] in their classes without asking permission, and they will be able to reproduce their course work to broadcast it by telecommunication in the context of remote or distance teaching. They will also be able to reproduce works in their totality for the purpose of display on interactive whiteboards or computer screens. Schools will no longer have to pay royalties to record news programs for pedagogical purposes, to present films, or to perform plays, for which they will be able to reproduce the sets, costumes, and lighting designs created by professional artists. This is a total expropriation of the intellectual property rights of creators in the educational sector. It is as if the government had declared that from now on literary, theatre, musical, and artistic works will be considered collective property.

This is in reference to education, but another important point to consider, especially at the university level, is the issue of the academic book market in Quebec. It is no secret that Quebec is an island of 7 million francophones in a sea of over 300 million anglophones in North America. The American book market serves primarily the Canadian English-speaking market. We need a strong academic book market in Quebec to be able to protect our culture, so that we can adapt or examine various issues—such as the economy, philosophy or other university subjects—from a Quebec and francophone perspective. This book market is small compared to the English-speaking American and Canadian market. It must fight against assimilation and against greater integration of these books that are quite often translated into French, but do not reflect Quebec's point of view or a francophone perspective, even in Canada.

This bill could end up further weakening the academic book market in Quebec—for university texts, for example—and creating even more problems for this market. The industry in Quebec will have to face more challenges if it wants to survive.

What justification will be given if the across-the-board use of photocopying is permitted or there is no adequate compensation for the authors of these books, as mentioned by DAMI©? What motivation will Quebeckers, and francophones across Canada, have to write a book that truly reflects the francophone and Quebec philosophy, vision and point of view? There will be no such books in the future.

This bill represents a real threat to an industry that is living on borrowed time in Quebec. That is why we are calling on the government to work with us to establish greater balance in this bill and ensure that all stakeholders benefit, not just the companies that own intellectual property, which are heavily favoured at this time. In response to our government colleagues’ comments, this to a large extent explains why they have the support of John Manley, among others, and it will come as no surprise that he is the president and CEO of the Canadian Council of Chief Executives. However, they will not have the support of authors' organizations, artists' organizations and copyright collectives.

Nor will they obtain, despite what they claim, the approval, the consent or the support of consumer associations. As it stands, the bill does not permit consumers to make backup copies or transfer the documents they have purchased—content for which they have paid and enjoy certain consumer rights—to other formats. The Writers Guild of Canada, among others, raised this problem. This organization stated that the only option that Bill C–11 gives creators is the addition of a digital lock, which has the effect of impinging upon current revenue streams for creators and creates a defect in the bill by depriving consumers of the very rights that are guaranteed them elsewhere in the bill.

The government said it was giving copyright owners a tool for developing and marketing their products and earning an income. It said it was protecting creators against acts of piracy. Although it is true that digital locks worked or can work when it comes to software, they are too restrictive and very unpopular when it comes to entertainment content. They risk being discriminated against by market rules, as they were in the case of music. Digital locks do not allow for progress and do not help defend the interests of consumers and creators. At best, digital locks will simply block current sources of income for creators.

This income is nevertheless very important. If this bill passes in its current form, authors, artists and cultural artisans could lose more than $125 million in income a year. That is why we are calling on the government to work with the NDP in order to amend the bill. We welcome the desire to modernize legislation, especially since this modernization has been a long time coming, but it has to be done properly. Unfortunately, Bill C-11, as currently worded, does not benefit all stakeholders equally. We want to work with the government to ensure that everyone benefits and to modernize the Copyright Act in a coherent and lasting way.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, once again, I thank the member for Rimouski-Neigette—Témiscouata—Les Basques, the riding with the longest name in the country, which has elected an excellent member, for his speech.

He talked about all the problems this bill raises. We are well aware that even though the Conservatives had several years to do their job, they did not do it well. They botched the job, and this has resulted in a bill that raises a lot of problems. We have talked about them this afternoon and we will continue to talk about them in the days to come.

I have a few questions for the member. What are the biggest problems with this bill? Does it have to do with burning all the books, the students’ notebooks, 30 days after their classes end? Is it the fact that artists are not compensated? What does he think are the biggest problems with this bill?

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I would like to thank my colleague for his question.

In fact, this bill is extremely complex and technical. That is why we have identified a number of weaknesses. The one relating to the destruction of materials, of course notes, after 30 days is a striking problem, but the main problem I see in this bill is the lost income for authors, creators and artisans. At the end of the day, if we are not able to protect that drive to create—and that is what the objective of the Copyright Act should be—then that will present a problem. The same will be true if we do not find ways to modernize the law and at the same time adapt the flow of income that creators are able to receive. That is what was done in the past when new media were developed, when we saw, first, the vinyl record. Then we got CDs, DVDs and so on. We managed to adapt the flow of income to these new facts of life, one way or another. This bill does not do that. In fact, this bill could interfere with those sources of income by jeopardizing the income of artisans, creators and artists; it could be a disincentive to that flow of creativity and diminish creators’ ability to disseminate Quebec and Canadian content on a large scale.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to congratulate my hon. colleague on his very informative speech.

My question for him is this: if we wanted to keep the title of the bill as is, a bill to modernize copyright, what are some of the main amendments he would propose?

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I thank my hon. colleague for her question.

Hopefully, that kind of discussion would take place in committee. The committee members could propose various paths. Coming back to an academic perspective, I think measures to protect Quebec's book market would be necessary, particularly for professional books and text books. This has been done in the past. In a university, books and other materials can be photocopied, but this is done with dividends through various organizations that can then pass them on to the authors. In the case of new materials and new possible ways of offering courses, we need to be able to adapt and allow some flexibility, while still ensuring a dividend. This bill contains 40 exceptions, where content can be used without any compensation to authors. This must be changed. There must be a mechanism to allow these dividends to make their way to the artists so that they will be encouraged to continue their creative process.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, this speech is in line with my previous speeches and came about as a result of my thoughts on whether the current government is truly willing to protect and promote the public interest.

The purpose of the bill before us is basically to replace the current Copyright Act. Those present in the House all agree that this is necessary. Social and technological realities are, by definition, constantly changing and it is important to have legislative tools adapted to the current global economy, in which massive amounts of information are constantly being transferred electronically.

Both sides admit that the letter of the Copyright Act must indeed be modernized; however, the text of the bill proposed by the Conservatives does not address a number of key issues. As a result, the proposed solution could prove to be more risky and problematic than truly innovative and functional.

The opinion of a number of experts on the issue disputes the legitimacy of certain elements and even the adoption of such provisions by the federal legislative body since many issues addressed in the bill actually overlap with areas under provincial jurisdiction.

The legislative exercise must involve weighing the pros and cons. Given that the desired outcome of this exercise is to update a law on so-called progressive materials, the government must support an approach that strikes a balance between the rights of consumers and the rights of content owners.

Taking into account current practices in arts and technology, this bill favours major industry players, the ones that ultimately hold the prerogative power associated with copyright. I will now explain all the concepts associated with licensing and the transfer of ownership.

The agreements binding creators to stakeholders in the arts and culture industry in Canada make systematic use of provisions granting licences or transferring the rights of a creator to the benefit of major industry players. In addition, the real winners of Bill C-11 are the large movie studios and record labels, not Canadian artists and consumers.

Since I come from a family of artists, I was able to witness first-hand the terrible consequences related to the inequality of power that is common in the artistic production sector in its broadest sense.

As an illustration, I will delve into empirical studies by sharing a story about something that happened to my father. My father is an author-composer-performer who speaks Innu almost exclusively. Like me, he comes from the Uashat mak Mani-Utenam community. In the early 1990s, he went to the United States to promote culture and perform.

During his time in the United States, a digital recording was made of his voice while he was singing time-honoured songs from thousands of years ago. Some say that that is in the public domain, but someone made a digital recording of his voice and when he came back to Canada many years later, he was surprised to hear the recording in a major American film, of which millions of copies had been distributed. It was difficult for him to understand how his recording had ended up in a Columbia Pictures film. But nothing came of it and he still has a bad taste in his mouth when he thinks about what happened.

Next I want to talk about sharing. I will talk about the traditional way of looking at information sharing. This link with the sharing of traditional aboriginal knowledge is relevant in analyzing the situation before us. While first nations have thus far had limited recourse to Canadian laws pertaining to intellectual property to protect creations resulting from their traditions, it is recognized that unauthorized copies of works by groups and communities; the appropriation of aboriginal themes and images; artist copyright infringement; culturally inappropriate use of aboriginal images and styles by non-aboriginal creators and the exclusive appropriation of traditional knowledge without compensation are quite common within socially deprived communities.

Now, when I say “appropriation without compensation”, that is a direct reference to the pharmaceutical advance that resulted from traditional knowledge the indigenous people had on the land. When I talk about indigenous people, we may go as far away as New Guinea and Australia, but here in Canada, we know that the pharmaceutical and pharmacological industry has drawn on traditional knowledge on the centuries-old use of plants on the land. Today, there are multitudes of medications that derive from that direct application. There is a recognition, in a sense, of the contribution of the Innu and indigenous people in general, but very few patents, in my opinion, have been issued to the indigenous nations.

It goes without saying that the proposed legislation does not answer any of the considerations raised by the indigenous communities and highlighted in the study entitled “Indigenous Traditional Knowledge and Intellectual Property Rights”, prepared by the Parliamentary Research Branch in response to a request in 2004. In addition, the bill to modernize copyright will allow a third party to establish a system of digital locks that will supersede virtually all other rights that may be exercised by the indigenous nations over their ancestral works.

As we can see, the imbalance of power that can be observed in the arts industry gives rise to appalling situations, a reality that has unfortunately eluded the text of the bill. The proposed legislation simply exacerbates the disadvantage the artist is at, for the benefit of recording and movie studios that have enormous resources at their disposal for creating a system of digital locks that will supersede virtually all other rights provided in the legislation. Ultimately, this practice will enable the industry to protect its declining capacity to generate enormous profits.

Regarding the concepts of licence and assignment of rights, these are usual clauses that we see in contracts: the artist is not in a position to bargain since most often they are presented with a standard form contract. The clauses already exist. Assignment is a little rarer, but explicit licences are included and the artist is then bound by them. The artist has very few rights, other than the moral right in respect of the ultimate use made of their work, and they are not in a position to stand up to the armada of lawyers who work for the industry.

The government must therefore amend the provisions relating to digital locks before this bill is passed. Apart from its negative effects on artists’ income expectations, that measure grants exorbitant powers to the rights holders, the players in an already very well-off industry.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, my question is for my colleague. How can this legislation, which gives priority to the development of a digital economy, respect the culture and artistic performances of the members of a nation that needs to be respected merely to continue to exist and to have a cultural life?